*1 v. NORTH CAROLINA McKOY Argued No. 88-5909. October 1989 Decided March *2 Marshall, J., Court, Brennan, in opinion delivered the which White, Stevens, JJ., White, J., Blackmun, joined. post, p. and Blackmun, J., Kennedy, p. 445, concurring J., post, opinions. and filed J., p. Scalia, opinion concurring judgment, post, filed an 452. filed Rehnquist, J., O’Connor, dissenting opinion, J., which C. joined, post, p. 457. Ray argued petitioner. Hunter, Jr.,
Malcolm the cause for With him on Gordon Widenhouse the briefs were and Robert S. Mahler. Deputy Attorney Byers, Special H.
Joan General of North argued respondent. Carolina, With her on the cause Attorney Lacy Thornburg, General, H. Michael brief were J. Attorney Carpenter, Special Deputy F. General, Steven Attorneys Bryant Barry McNeill, Assistant S. General.* opinion delivered the of the Court. Justice Marshall constitutionality In this case we address the of the una- nimity requirement capital sentencing in North Carolina’s prevents scheme. That from consider- ing, deciding impose penalty, any whether to the death factor that the does not find. Maryland, We hold that under our decision Mills v. unanimity requirement U. S. 367 North Carolina’s vi- by preventing olates Constitution sentencer from con- *3 sidering mitigating peti- all evidence. We therefore vacate resentencing. tioner’s death sentence and remand for I McKoy, Stanly Jr., Petitioner Dock was in convicted County, first-degree During Carolina, North of murder. sentencing phase McKoy’strial, of the trial court instructed jury, orally form, both and a written verdict to answer questions determining four its sentence. Issue One asked: *A brief of amici curiae urging affirmance was filed for the State of K. de Kamp, John Van Attorney California, California et al. General of General, Iglehart, Richard B. Sugi- John H. Attorney Chief Assistant General, yama, Senior Assistant and Herbert F. Wilkinson Attorney Gillette, General, Dane R. Deputy Attorneys Don joined by Siegelman, Corbin, Alabama, Robert K. Attorney Attorney General of General of Ari- zona, Kelly, Attorney John J. Michael J. Connecticut, State’s of Chief Jones, Boivers, Attorney T. James Georgia, Attorney General of General Pearson, Linley E. Idaho, Indiana, Frederic J. Attorney General Cowan, Webster, William L. Kentucky, Attorney Attorney General Moore, Missouri, Michael C. Attorney Mississippi, General of General of Perretti, Jr., McKay, Brian Peter N. Attorney Nevada, General Attor- Stratton, Hal ney Jersey, Attorney of New General of New General Mex- Preate, Oklahoma, Henry, Attorney ico, Robert H. Ernest D. General of Mattox, Jr., Attorney Jim Pennsylvania, Attorney General of General of Mary Terry, Attorney Texas, Sue Virginia. General beyond unanimously you a rea- evidence, from the find “Do following more of the existence of one or doubt, the sonable jury App. aggravating 23. The found circumstances?” McKoy statutory aggravating circumstances: that “had two felony involving previously a use convicted of been person”1 that the murder to the was threat of violence “engaged against deputy sheriff who was committed performance therefore an- of his officialduties.”2 proceed and was instructed to “Yes” to Issue One swered Issue. the next unanimously you find asked: “Do evi-
Issue Two followingmitigating of one or more of the dence the existence judge 24. The submitted Id., at circumstances?” respect jury eight possible circumstances. With orally judge instructed the circumstance, to each you unanimously “If do not find this as follows: by preponderance evidence, so indicate circumstance your space” by having write,' ‘No,’ foreman on the Id., at 10-13. The verdict form reiterated verdict form. unanimity requirement: space mitigat- “In the after each you unanimously ing if circumstance, ‘Yes,’ write find that preponderance circumstance of the evidence. you mitigat- find Write, ‘No,’ do not by preponderance ing Id., circumstance of the evidence.” 24. *4 unanimously statutory jury mitigating The found the cir McKoy’scapacity appreciate “to the criminal cumstance that ity require of his conduct or to conform his conduct to the impaired.”3 unanimously ments of law was It also found nonstatutory mitigating McKoy the circumstance had a functioning “borderline intellectual with a test score of IQ jury unanimously Id., however, at 25. The not, 74.” did 15A-2000(e)(3) (1988). § 1 N. C. Gen. Stat. 2 15A-2000(e)(8). 3 15A-2000(f)(6). § § McKoy statutory mitigating circumstances
find the the mental or crime “under influence of the while committed McKoy’sage the time of or that at disturbance”4 emotional jury mitigating The also was factor.5 crime, 65, nonstatutory mitigating cir four to find failed McKoy signs exhibited that for several decades cumstances: un or defect that went or emotional disturbance mental McKoy’s was mental and emotional disturbance treated; McKoy’sability by poor physical aggravated health; his day actually of the was the events of the murder to remember arising impaired; other circumstance that there was mitigating had value.6 the evidence that jury circum- the existence Because found which Three, it was instructed to answer Issue stances, beyond you unanimously doubt “Do find a reasonable asked: by or circumstance circumstances that the found outweigh aggravating you cir- is, are, insufficient to by you?” Id., at or circumstances found cumstance added). (emphasis “Yes,” answered this issue The you proceeded “Do to the final issue. Issue Four asked: so unanimously ag- beyond find a reasonable doubt that by you gravating is, or circumstances found circumstance or imposition sufficiently substantial to call are, penalty circum- when with death considered (em- youT Id., circumstances stance or found added). responded phasis jury again “Yes.” Pursuant instructions, the verdict form and the court’s to the binding made a recommendation of death. therefore appeal During pendency petitioner’s direct Supreme Mills v. Court, this Court decided Carolina North 4 15A-2000(f )(2). § 5 15A-2000(f )(7). § 15A-2000(f)(9). provision provided “catch-all” Although
6 § statute, nonstaturory it al grouped with circumstances because it is statutorily specified. mitigating factors the consideration of lows for *5 supra. im-
Maryland,
we
a death sentence
There,
reversed
capital punishment
Maryland’s
posed
scheme because
under
jury
created “a substantial
and verdict form
instructions
may
thought
jurors
probability
. . well
have
.
that reasonable
considering any mitigating
precluded
they
evi-
from
were
agreed
par-
jurors
on the existence of
all
dence unless
Id.,
at 384. We reasoned
circumstance.”
ticular such
jurors
prevent
allowing
from
to
the other
a “holdout”
principle
mitigating
considering
estab-
evidence violated
(1978), that a
Ohio,
Petitioner split pur- Supreme Court, decision, in a North Carolina The ported grounds distinguish Mills on two and therefore de- to “Maryland’s procedure re- it noted that First, .relief. nied impose penalty quired if it at the death ‘found’ aggravating circumstance and did not ‘find’ least one “if it found that or circumstances” aggravat- outweigh circumstances did not 40, ing 1, 12, 323 N. 372 E. 2d C. S. circumstances.” (1988). contrast, stated, in North the court Issue Four impris- allows the to recommend life scheme Carolina’s aggravating “if it feels that the circumstances are not onment sufficiently penalty, if to call for the death even it substantial mitigat- aggravating circumstances and no has found several ing Ibid. circumstances.” Maryland’s
Second, the court asserted that whereas “legally long remained relevant” as as one scheme evidence jurors presence circum- more found supported by 41, 2d, E. evidence, id., at 372S. at stance legally ir- “in evidence effect becomes North Carolina prove mitigation prove fails the defendant relevant supports of all the that such evidence the satisfaction finding mitigating factor,” id., 2d, 372 E. at S. Supreme The North Carolina Court believed we 33.
439 signifi- had found the “relevance” of the evidence Mills a “‘[n]o cant factor because we had in a stated footnote that one argued Maryland Appeals sug- here, has nor did the Court of gest, mitigating legally evidence can be rendered “irrele- Id., vant” one holdout vote.’” at 372 E. 41, 2d, S. at 34 7). (quoting Mills, S., n. The in- court thus terpreted allowing Mills as States to define as “irrelevant” jurors’ and to exclude from consideration evidence intro- support mitigating jury duced to circumstance that the did unanimously Accordingly, Supreme find. the State Court upheld McKoy’sdeath sentence.
II Despite attempts distinguish the state court’s inventive clearly governs Mills, our decision there this case. First, North Carolina’sIssue Four does not ameliorate the constitu- infirmity unanimity requirement. tional created Issue jury only Four, Three, like Issue allows the to consider miti- gating unanimously factors that it finds under Issue Two. Although jury may opt imprisonment for life even where unanimously any mitigating it fails to find circumstances, the required fact remains that the to make its decision based on those circumstances it finds. unanimity juror pre- thus allows one holdout giving they vent the others from effect to evidence that Eddings believe calls for a “‘sentence than less death.’” (1982), quoting Oklahoma, Lockett, supra, (plurality opinion). at 604 Moreover, even all jurors agree mitigating that there are some circumstances, prevents giving North Carolina’s scheme them from effect to supporting any evidence of those circumstances in their delib- they erations under Issues Three and Four unless unani- mously find existence of the same circumstance. This is precise compelled Mary- defect that us to strike down the land scheme Mitts. See 486 U. at 374. Our decision required Mills was not limited to cases which the penalty impose aggravating if it death finds that outweigh mitigating circumstances circumstances or that no Rather, circumstances exist at all. we held that “height require would be the arbitrariness to allow imposition penalty” where 1 of the death was able to prevent giving the other 11 from effect to evi- Ibid, added). (emphasis dence. Supreme holding
Second, the State Court’s *7 only jury unanimously if evidence is “relevant” the finds that proves mitigating existence of circumstance distorts concept “[I]t universally recognized is of-relevance. that inquiry, conclusively evidence, to be relevant to an need not prove ‘any tendency in the ultimate fact issue, but have consequence to make the existence fact that is to probable probable determination the action more or less Jersey than it would be without the evidence.’” New (1985), quoting L. O., T. 469 U. S. Fed. Rule Evid. meaning 401. The of relevance no in is different the context capital sentencing evidence introduced proceeding. As the Chief Justice of the North Carolina Supreme Court stated dissent in this case:
“Relevant evidence evidence which tends logically prove disprove to or some or circumstance fact have, reasonably which a could fact-finder deem to miti- gating accepts rejects value. Whether the fact-finder bearing relevancy. the evidence has no on the evidence’s The relevance even if the exists fact-finder be fails to persuaded by necessary It evidence. is not the item of evidence alone convinces the trier of fact or be sufficient to convince the trier of fact of the truth of proposition C., for which it is offered.” 323 N. (Exum, 55-56, dissenting), 2d, 372 S. at 45 J., E. C. cit- ing M. Graham, Handbook of §401.1, Federal Evidence (2d 1986). n. 12 ed.
Clearly, then, circumstances present by to found did not become “irrelevant” mitigation merely one or more either did because proved had circumstance been' as a fac- not believe though the circumstance, tual matter or did not think that mitigated proved, the offense.7 holdings Skipper Carolina, v. South
Furthermore, our Eddings supra, Oklahoma, show “legally that the mere declaration that evidence irrelevant” mitigation if bar the consideration of that evidence cannot reasonably find that it warrants the sentencer could a sen- Skipper, the trial court had ex- tence less than death. mitigation evidence that the defendant cluded as irrelevant adjusted prison had well to life. This Court reversed the ground “by death sentence on the such evidence was its sentencing determination” because it nature relevant pose might convince the that the defendant “would no danger jailers prisoners undue to his or fellow and could lead imprisonment.” life a useful life behind bars sentenced to Similarly, Eddings, sentencing at 7. court precluded considering law from had ruled that it was evi- troubled childhood and emotional dence defendant’s *8 Appeals affirmed, of Criminal disturbance. State Court mitigation holding was irrelevant to be- that such evidence liability. support legal cause it did not excuse from criminal ground This Court reversed on the that such evidence was undoubtedly mitigation if it not excuse relevant to .even did 455 at 113-116. the defendant’s conduct. U. unanimity requirement by
Nor can the save the State characterizing proof it as a standard of intended to ensure reliability mitigating evidence. The State’s reliance on
7 scheme, capital sentencing In North Carolina’s finds a stat utory present, is mitigating circumstance to be circumstance deemed Stokes, value as a matter of law. State v. 308 N. mitigating to have C. (1983). 634, 653, 184, nonstatutory mitigating cir 304 E. 2d 196 For S. cumstances, both whether the circumstance has been must decide Pinch, mitigating value. See State v. N. proved 306 C. and whether it has 203, denied, 1, 26, citing 459 1056 State 292 S. E. 2d cert. U. S. (1979). Johnson, 47, 72-74, 257 S. E. 2d 616-617 v. 298 N. C.
442 (1977), misplaced. York,
Patterson v. New 432 197 U. S. rejected process challenge case, this Court a due to a requiring charged New York law defendant with second- degree prove by preponderance murder to of the evidence the affirmative defense of extreme emotional disturbance manslaughter. order to reduce the crime to The Court rea- constitutionally required provide soned that a State is not that affirmative defense. But if a State “nevertheless recognize mitigates degree chooses to factor that criminality punishment, or . . . the State assure itself certainty.” that the fact has been established with reasonable validity Id., Patterson, however, at 209. did not involve the capital sentencing procedure Eighth of a under the Amend- requires ment. The Constitution States to allow consider- mitigating Any ation of evidence in cases. barrier to such consideration must therefore fall. As we stated in Mills:
“Under our decisions, is not relevant whether the bar- rier sentencer’s consideration of all evi- interposed by supra; statute, dence Lockett Ohio, v. Dugger, (1987);by Hitchcock v. the sen- tencing Eddings supra; court, Oklahoma, an evidentiary ruling, Skipper supra. Carolina, South respect single juror’s The same must be true with to a against finding presence holdout vote of a circumstance. cause, Whatever the . . . the conclusion necessarily [sen- would be the same: ‘Because the tencer’s] failure to consider all of the evidence imposition plain risks erroneous of the death sentence, duty Lockett, violation of it is our to remand this case for resentencing.’ Eddings v. Oklahoma, S.,U. concurring).” 117, n. (O’Connor, J., S., U. at 375. *9 permitted answer, It is no of course, that the to mitigating collectively, “consider” evidence when it decides any mitigating Two, under Issue whether circumstances requires juror permitted exist. Rather, Mills that each be mitigating give when decid- evidence and effect to consider question a sentence of ing to vote for whether ultimate that, in North Carolina’s means This death. system, mitigating to consider all be allowed each must ag- deciding whether Three and Four: Issues evidence outweigh mitigating circumstances, gravating circumstances aggravating circumstances, when consid- whether the sufficiently any mitigating sub- circumstances, are with ered justify Mills, such death. Under a sentence of stantial may mitigating not be foreclosed evidence consideration mitigating jurors’ circumstance find a failure to one or more Two. under Issue requiring
Finally, reject contention that the State’s we mitigating unanimity be is constitutional circumstances on unanimity aggravating requires cir on also cause the State required Maryland in Mills also scheme cumstances. aggravating unanimity mitigating circumstances. on both not, how treatment did id., consistent at 384-389. Such See unanimity requirement for circum ever, save limit a A sentencer’s in that State case. stances merely places because it evidence consideration aggravating circum limitation on consideration the same Penry Lynaugh, stated As the Court stances. (1989): carefully defined standards to the “Tn contrast impose the death discretion to narrow a sentencer’s must ability nar- limits State’s sentence, the Constitution consider relevant evi- discretion to a sentencer’s row impose might the death decline to cause dence that Kemp, McCleskey 279, 304 481 U. S. sentence.’ (1987) precisely (emphasis original). it is be- Indeed, directly punishment related to should cause the culpability personal must the defendant that give evi- effect to be allowed to consider character or record or a defendant’s relevant to dence Id., at 327-328. the offense.” the circumstances *10 Ill unanimity requirement We conclude North Carolina’s impermissibly jurors’ limits consideration of evi- contrary dence and hence is to our decision in Mills.8 We petitioner’s therefore vacate the death sentence and remand Supreme this case to the North Carolina Court for further proceedings opinion. not inconsistent with this
It is so ordered. Justice White, concurring. nothing opinion,
There is
in the Court’s
Ias
it,
understand
grounds jury
that would invalidate on federal constitutional
a
require unanimity
respect
instruction that does not
with
requires
juror
circumstances but
to consider a
only if
circumstance
he or she is convinced of its
by preponderance
existence
of the evidence. Under such
any juror
weigh
any
an instruction,
must
in the balance
miti-
gating
circumstance that
his or her mind is established
preponderance
ju-
evidence,
whether or not
other
Court’s, opin-
rors are likewise convinced. Neither does the
ion hold or infer that the Federal Constitution
forbids State
place
persuasion
on the
defendant
burden of
with re-
spect mitigating
circumstances.
basis,
On this
I concur in
opinion.
the Court’s
fact,
In
presents
this case
an even clearer case for
Mills
than
reversal
(1988).
Maryland,
Mills,
issue whether a reasonable interpreted could have the instructions in allowing that case as individual to consider mitigating circum id., stances that unanimously Compare 375-384, found. with id., (Rehnquist, J., at 391-395 dissenting). Indeed, C. the dissent Mills did not challenge holding instructions, the Court’s that the if so inter preted, case, by contrast, were unconstitutional. In this the instructions expressly jury’s and verdict form limited the consideration to mitigating circumstances found. Blackmun, concurring.
Justice separately only join 'opinion, I but write to un- Court’s my Maryland, *11 conviction that Mills 486 S. derscore U. (1988), correctly 367 controls this case and Mills was decided.
I simply in view, In the dissent’s the Court Mills assumed, invalidity decide, did not of a miti- but gating only they factors could be considered if unanimously. That were found characterization cannot be opinion. squared with the text of the Mills II Part of that directly question opinion addressed the whether such a re- quirement permissible. was The Court concludedthat a rule any mandating agreement before unanimous could con- particular mitigating factor was forbidden sider our deci- Eddings Ohio, in 586 sions Lockett v. 438 U. S. v. (1982). Oklahoma, 455 U. 104 That an S. conclusionwas es- step overturning in the Court’s rationale for sential Maryland Ambiguous jury in instructions,
statute. even Eighth simply case, do not violate Amendment be- they ambiguous. question cause are And the addressed in opinion juror might Part III of the a reasonable —whether interpreted precluding have the instructions as his consider- any mitigating factor not found ation of —would wholly lacking significance in constitutional if have been such Maryland permissible. Rather, the a rule were instructions they susceptible to be because were were held invalid of two interpretations, plausible interpreta- and under one those the instructions were unconstitutional. tions acknowledges language “there The dissent Mills unanimity requirement suggesting . that a would contra- . . Post, at 459. vene this Court’s decisions.” The dissent con- suggestions tends, however, that such were dicta. unanimity requirement propriety of a the dissent’s view the Maryland properly Court, since was not before the requirement had con- that such a would be unconstitutional and ceded 446 imposed
argued only instructions no such rule. That that its position is untenable. disputed, not been
First, even the issue had Court’s binding prece- question would constitute a resolution of the hardly of, dent. It but unheard for this Court to unusual, parties significant legal questions on which the have decide Teague joined g., Lane, e. See, issue. (1989) (1989); Penry Lynaugh, 492 U. S. 313-314 Teagioeprinciples apply capital sentencing). (holding that deciding briefing Although the such issues without wisdom Teague, argument questioned, see has been U. S., dissenting); Penry, J., at 349 326-327 U. (Brennan, concurring dissenting part), part J., (Stevens, suggested heretofore that such are has not been decisions lacking precedential approach value. The dissent’s *12 respondent by Court, stare decisis would allow a before this timely of a to avoid recur- concession, means resolution of a ring legal question might litigated that it be so at more propitious approach require litigants would time.1 This seeking rely on a decision of this Court must scour the points in briefs order to determine what were and were not That is not cannot be the law. contested. contending the in
Moreover, the dissent distorts record unanimity propriety requirement that the of a was not at argument petitioner’s in issue Mills. The section of the brief underlying question began: in Mills “The is whether the Maryland Legislature may constitutionally require unani- agreement mous the before circum- weighing process.” in stance be considered Brief p. Petitioner, 1987, 87-5367, T. 9. O. No. The bulk of response argument the State’s was devoted to the that no (1953) (“[Vol Co., 629, v. W. T. 1 Cf. United States Grant 345 632 untary illegal deprive allegedly cessation of conduct does not the tribunal of moot”). e., case, i. power to hear and determine the does not make the case interpret the instructions the man- would reasonable possible. suggested The con- was State also ner that Mills tended, however: proffered by interpretation of the statute Pe-
“Under the titioner, restriction existed an unconstitutional particular mitigating unanimity on a circumstance was required weighed determining before it could Eddings appropriate Lockett However, sentence. ‘input,’ subsequent delib- relate restrictions on not Although process. component has twelve erative entity. rejection parts, single The of a is a full after introduction and consideration of circumstance, simply a There evidence, is factual determination. legal impediment no consideration the evi- is unanimity simply dence. type Lockett restriction found unconstitutional in Kirkley, Eddings. N. See State C. (1983).” Respondent E. 2d in Mills S. Brief for omitted). (footnotes 19-20 quotes passage,
The dissent the first sentence characterizing the State that a una- it as “concession” nimity requirement at Post, would be invalid. 459. But precisely paragraph the remainder of the sets forth since unanimity requirement argument defense same today, post, compare 465-466,2 the dissent advances Maryland point pecu- suggestion conceded the rather *13 2 (“Petitioner Respondent n. 7 views compare Brief for in Mills Also operating free of the jury independent twelve the views of a sentencers contrary any guided of completely a notion discre others. Such view is (“Likewise tion”), incompatible theory with the is post, 469 Court’s with previously have be essen principle guided discretion we held to little in a validity capital sentencing. guidance . . . There is tial to the bring to the system requires individual ultimate decision each by idiosyncratic mitigating, untempered of what facts are his own notion discipline agreement”). of group deliberation and quoted paragraph awith above concludes Indeed, liar. up Kirkley case which first North Carolina citation to —the requirement against attack the held constitutional mitigating factors could those consider quoted the dissent context, the sentence found. Read argument, summary plainly an Mills’ admission Appeals Maryland con Court of had its The correctness. requirement unanimity would' violate cluded Eighth challenged had determined that the Amendment, but requirement. imposed State, The how such instructions no clearly Appeals’ to defend the Court of ever, entitled was ground judgment if a that, even reasonable on the alternative requiring jury might a unani have the instructions as read finding any mitigating factor could consid mous before be not contravene dictates of ered, that would Eddings. precisely argu The State raised Lockett and rejected it.3 ment, this Court
II correctly moreover, was de- I that Mills convinced, remain impli- apparent issue to me that the rule at here cided. It is my Eddings. expressed in In Lockett and cates the concerns pointless in this case view it to ask whether the sentencer jurors. jury: if 11 are the is the give forbidden to effect to evidence of them are right guaranteed by they persuasive, then the which deem effectively negated, even the restriction is Lockett has been sentencing body. imposed If the 12th member provided that all evidence was first state law por- foreperson, presented who to the could then decide what Maryland, in Mills opinion separate Nor White’s does Justice provide recharacterizing holding a basis far from certain that Justice White’s concurrence will bear Court. I am event, places upon that the it. the mean the construction dissent opinion itself; gloss majority opinion found within the ing of is to be place upon it is not authoritative. that an individual Justice chooses
449 jurors I allowed to have no view, would be of it other tions give ability to effect to the evi- the sentencer’s doubt per- impaired. The that North be fact Carolina would dence hardly the veto makes 1 12 to exercise individuals mits impairment severe. less suggests an that the rule announced Mills is dissent Eighth jurisprudence. quirk our Amendment aberration, unanimity require- it is the North Carolina fact, however, extraordinary departure represents from the an which ment juries customarily operate. typi- way are Juries in which upon cally on the ulti- to render unanimous verdicts called given case. But it is understood that differ- issues of mate pieces persuaded evidence, different ent Plainly they upon agree line.4 there bottom even when agreement general requirement that reach on is no preliminary issues underlie the verdict.5 factual which 4Moreover, agree typically jury’s inability to an ultimate issue as inability jury. agree requires hung in a deadlock or Here results assumption particular mitigating that a cir proceed upon the proved been not to exist. has cumstance exception principle, sup significant but it does not 5 Thereis one prosecutions, port position. In federal criminal where a un the dissent’s Appeals general agree are in required, verdict is Courts of animous conclusory agreement “[ujnanimity . . . means more than ment that question; requirement has the statute in there violated the defendant underlying a agreement principal to the factual elements substantial (CA9 Ferris, 1405, F. 2d v. 719 1407 specified offense.” United States (CA6 1983). 1104, Accord, Duncan, F. 2d v. 850 1110-1115 United States (CA3 1988); Beros, 455, 1987); F. 461 States States v. 833 2d United United denied, (1987); 108, 480 Schiff, F. 2d 114 U. S. 945 v. cert. (CA5 1977). But see Gipson, 553 F. 2d 456-459 United States (CA6 1987) (questioned in Bouquett, 820 F. 2d States United 1112-1113). 2d, Duncan, not require F. rule does that each bit This discarded, unanimously entirely re credited or but it does of evidence be violation, agreement of the quire as to nature defendant’s unanimous simply the fact a violation has occurred. The North Carolina be found there aggravating circumstances imperfect, in another area law. This analogue, albeit fore has some *15 example, might compare, in which the criminal trial for We testimony presents alibi It of an witness. the defendant surely supposed the could enforce an State not be could preliminary evidentiary requiring determination rule providing credibility evidence, that no this the of as to every juror weight it give wor- it unless deemed could plainly thy interfere with the rule would Such a of belief. present ability factfinder, to the a defense to accused right impairs just to the defendant’s as rule at here the issue mitigation the sentencer. considered have evidence upheld points out, cases have state rules our As the dissent proving place upon of af defendants the burden criminal g., v. New See, York, e. Patterson firmative defenses. (1977). however, are reasons, two these cases For reasoning point. in the affirmative- the Court’s First, on not power upon “greater appears includes to rest cases defense constitutionally argument: the is not lesser” since State may required recognize all, take the lesser the defense upon proof step placing of the defendant. See of burden may greater the State not exercise id., at 209. But since introducing prohibiting power defendant reasoning inapposite here. evidence, that Sec analogy the affirmative-defense cases ond, dissent’s proof. unanimity concepts To and burden of confuses say upon proof placed defend burden of ju says nothing some about the situation which at all ant thát the has been satis others, but not believe burden rors, analogy presumes the elements that once fied. The dissent’s jury’s agree proved, failure to have been of an offense however; premise defendant, its principle protection is a does little to convict a defendant vote twelve “[r)equiring the protected pre- unless right a unanimous verdict is that his to insure action as to the defendant's course of is also requisite consensus 2d, principle analogous is no Gipxon, F. at 458. There required.” upon the basis for their jurors voting acquit agree must requiring that reasonable doubt. (just in a conviction as a
to an affirmative defense results presence jury’s agree as to the of a North Carolina failure to given mitigating “finding” factor creates a that the factor is say present); that, but our cases not and it is not at all do hung jury, conviction, clear that a rather than a would be the Harris, 202, 207, outcome. See State v. 89 R. I. 152 A. 2d (1959)(although 106, 109 the defendant bears the burden of proof insanity, as to “there is a vast difference between an persuasiveness as to the evidence and an in instruction *16 agreement. jury agree upon If struction as to the could not reached”) sanity (empha then no defendant’s verdict could original). peculiar infirmity insis The of the North Carolina sentencing procedure' simply places is not that it the burden mitigation upon proving the defendant, but that all dis jurors agreements among that the as to whether burden has in been satisfied must be resolved favor of the State.
Ill Mills, In the in Court described two scenarios which the unanimity operation in of the would result a sen- scenario) (in though 11 death, tence of even the first or all 12 jurors mitigating of the believed that the circumstances out- weighed aggravation. hypothetical, in those the first jurors present, believed that six factors were but juror’s prevented any the twelfth veto evidence miti- gation being stage considered the final of the sentenc- ing process. scenario, at 373-374. In the second jurors agreed all 12 that some factors were present, outweighed aggravation, the factors in but the any particular was not unanimous as to the existence of mitigating circumstance. at 374. We concludedthat “it Id., certainly height would be the of arbitrariness to allow or re- quire imposition penalty the of the death under the circum- postulated.” so Ibid. That assessment seems to me stances unanswerable. requires that statute also North Carolina course, the
Of
ag-
given
the existence of a
be unanimous
appropriateness
gravating
of the death
as to the
factor, aggravating
penalty
light
circum-
possibility
single
found.
stances
majority
will thwart the
there-
views
with aberrational
capital
defendant.
work
favor of
fore sometimes
ju-
injustice
in case where
sentence
But the
hardly
outweighs aggravation
mitigation
rors believe
possibility
compensated
other case a
some
escape
penalty when 11
be-
the death
defendant will
appropriate.
The State’s reliance on
to be
lieve death
very
“symmetry”
antithesis
law seems to me to be
of its
that the sentencer be allowed
of the constitutional command
of the individual of-
the “character and record
to consider
particular
as a
circumstances of the
offense
fender and the
constitutionally indispensable part
process
inflicting
penalty
Carolina,
Woodson v. North
of death.”
(1976)
agree
(plurality opinion).
I therefore
280, 304
join
petitioner’s
vacated, and I
death sentence must be
opinion
of the Court.
*17
Kennedy,
in the
concurring
judgment.
Justice
(cid:127)
accepted,
Jury unanimity,
true,
is an
vital mechanism
is
full
occurs in the
that real and
deliberation
to ensure
jury’s
that the
ultimate decision will reflect the
room, community.
unique interaction of
of the
Yet the
conscience
sentencing
can
statute in issue here
allow
the elements of
unanimity
produce
sen-
the same
lackg
support
jurors, and,
unanimous
more
tence that
thought
inappropriate
11 of the 12.
this,
than
is
to be
operate
consequence,
here can
the same
As a
statute
Maryland,
in Mills v.
486
manner as the
instructions
(1988),
by majority
case,
in that
as construed
height
produce a result that is “the
of arbitrariness.” On
judgment
rationale, I concur in the
here. The
this sole
Court’s reliance on our decisions in Lockett Ohio,
438 U. S.
(1978),
Eddings
Oklahoma,
That this case be resolved on a more consist- precedents ent with our opinion is evident from the Mills it- begins: self. The relevant section of that decision argument straightforward, “Petitioner’s and well il- by hypothetical possi- lustrated situation he contends is Maryland capital sentencing ble under the scheme: “ jurors agree Tf eleven that there are six cir- cumstances, the result is that no circumstance Consequently, nothing is found. weigh there is against any aggravating circumstance found and the judgment though jurors is death even eleven think the penalty wholly inappropriate.’ death Brief for Peti- tioner 11.” at 373-374. emphasized point
Petitioner’s counsel the brief discus- constitutionality argument: sion of in the Mills oral problem constitutionality
“The you with the is that. . . possibility jurors agreeing have the of not 12 but one juror deciding position, it’s death. And our course, imagin[e] arbitrary system it’s difficult to a more than get juror?” luck Arg., of the draw: do I one Tr. of Oral pp. O. T. No. 87-5367, 23-24. passages
The central penalty idea of these is that the death imposed single juror’s should not be on the basis aof vote penalty where think the undeserved. The Court possibility single juror [con- stated: “The that a could block consequently require factor], sideration of a *18 impose penalty, the the death is one we dare not risk.” added). (emphasis at 384
454 single penalty
Application of death on the basis “intuitively disturbing.” juror’s Id., at More 374. is vote capital punishment imposition important, represents it described, arbitrary capri- system through that can be or the in Mills such a result as The Court described cious. description, “height it is Ibid. Given of arbitrariness.” apparent line in fits within our of cases Mills that the result capital punishment forbidding imposition on the basis unpredictable arbitrary “caprice,” fashion,” or “an g., through “arbitrary” See, e. Frank- “freakish” means. (1988); Lynaugh, 164, 181 v. lin 487 U. S. California (1987). Brown, U. 541 479 S. juror occur under North Carolina’s incident can A holdout they jurors aggravating agree to find an factor statute all penalty gravity support a death, be of sufficient jurors outweighing mitigating factor one an find accept. jurors If the follow refuses, reason, for whatever they will, 11 must their as we must assume instructions, balancing disregard After circumstance. performed, step can one result. is there of the statute “ though ‘judgment think the death even eleven supra, wholly inappropriate.’” penalty Mills, at 374. death judgment inherent sen- reasoned, moral Given poten- jury, tencing the extreme arbitrariness of this tial result is evident. opinion in the that much said,
This must be stressed today’s goes, much cause, case without further. the Court discussing in addition to the extreme arbitrari- that, It true opinion Mills went on issue, statute at to state ness of the unanimity requirement was inconsistent with our Eddings, Dugger, holdings Lockett, Hitchcock v. 481 U. S. Skipper Carolina, South (1986). unanimity that the re- so, Even the Court stressed stage Mary- quirement the final there, combined with arbitrary produce statute, “a could an result: land unanimously agree mitigat- on the existence of does not
455 ing may mitigating give any circumstance evidence effect ” impose whatsoever, and must the sentence death. 486 added). (emphasis at 375 S.,U. agree today “[o]ur
I cannot with the Court’s statement that decision in Mills was not limited to cases in which the required impose penalty aggravat the death it finds that ing outweigh mitigating circumstances circumstances or that mitigating Ante, no exist at all.”* circumstances at 439- (emphasis original). in The statute in Mills did include requirement, such a and the in also, statute here albeit more juror’s circumstances, limited can allow decision to override that of others as to the defendant’s ultimate sentence. It only judgment vacating is for this reason that I concur the sentence. recognize arbitrary operation
I would
of the North
system
Carolina
as the exclusive basis of our decision, for the
unanimity requirement, standing alone, is not invalid under
Lockett
our
line of cases.
In Lockett itself, we invalidated
precluded presentation
types
an Ohio statute that
certain
mitigating
jury.
Eddings, Skipper,
evidence to the
applied
judicial
Hitchcock,
we
the same rule to
instruc-
nonstatutory
tions that barred
certain
consideration of
evi-
bearing
recently,
dence
on the
character.
defendant’s
More
Penry
Lynaugh,
*Indeed, today’s opinion might language suggest broad be read to unanimity presence requiring jury that a scheme as to the or absence of requirement, factor could violate the Constitution. Such a however, reliability jury’s enhances the decision without risk single juror may impose against holdout a sentence the views of the Maryland unanimity requirement operated 11. other claimed that its way majority in surprise in Mills. It is no that the Mills assumed such a scheme would be constitutional. proposition progeny for the stand
Lockett and its presenta in an absolute manner the not cut off a State judicial in evidence, either statute tion of limiting inquiries relevant to which is struction, or *20 part severely the sen could never be so that the evidence jury tencing a unani The decision at all. mously in itself does none find circumstances mandatory things. final where there is no a State these sentencing process balancing stage that could allow in the or simply single juror im outcome, it the ultimate a to control poses proof requirement that must be met before the evi specifically factor found dence can be used as post, jury Parks, in at stated as a whole. As we Saffle logical “simple difference between rules 490, there is a jury permitted govern must be to con what factors gov sentencing making and rules that in decision sider considering may guide in ern how the State reaching weighing The extreme decision.” those factors given juror in the North Carolina scheme control to one capital juror impose a sentence. can alone to effect allow application a novel of Lockett to re fact, It is that and not reliability jury’s quirements enhance the intended to dispositive. findings, that is system description veto” Mills as of a “one “height supports here, the result of arbitrariness” agree I with
I this case on that basis alone. would decide Lockett ante, that the discussion of White, Justice evidentiary requirements today’s opinion no doubt on casts assigning presentation mitigating evidence such as proof requiring proof or of miti- the defendant burden of preponderance gating of the evidence. circumstances already opinion clear that the cases make His and our other today’s application opinion has no be- Lockett in discussion of my yond presented in case. Because of con- the issue might spawned opinion have itself otherwise cern that the unsupportable litigation confusing capital novel and over only in the I can concur courts, in the lower claims Lockett judgment. Court’s and Jus- with whom The Chief Justice Scalia,
Justice dissenting. join, tice O’Connor prohib- Eighth
Today Amendment holds that the the Court sentencing capital structuring scheme to its its a State by requiring circum- discretion channel unanimously. I that hold- Because believe be found stances Eighth support ing Amendment in either the is without previous I dissent. decisions, our
I sentencing once a scheme, North Carolina’s Under separate guilty capital murder, a sen- is found defendant *21 permitted to tencing hearing the State is held at which aggravating circumstances, and the evidence of introduce Specific mitigating circumstances. evidence defendant by mitigating defined aggravating are circumstances and any put permitted to forward defendant is statute, but the must mitigating The State he wishes. circumstance other aggravating specified circum- prove of the the existence defendant must beyond and the doubt, a reasonable stances by preponderance mitigating a prove factors the existence mitigating any aggravating circum- or For evidence. of the operative found unani- given it must be effect, to be stance unanimity, proponent mously by jury. Absent persuasion, and meet his burden failed to has circumstance proved. be considered will the circumstance special given form on jury verdict was case, In this questions. First, whether four to answer it was asked which beyond or more unanimously doubt one reasonable found it jury The statutory aggravating circumstances. specified aggravating respect circum- two with “Yes” answered unanimously by pre- found it Second, whether stances. ponderance any statutory nonstatutory the evidence mitigating jury circumstances. The answered “Yes” with respect statutory, nonstatutory, mitigating to one and one unanimously beyond Third, circumstance. whether it found mitigating a reasonable doubt that the circumstances it found outweigh aggravating were insufficient to circumstances jury it found. Fourth, answered “Yes.” whether it unanimously beyond ag- found a reasonable doubt that the gravating sufficiently circumstances found were substan- imposition penalty tial to call for the of the death when considered with circumstances it found. The jury answered “Yes.”
I think scheme, this taken as a whole, satisfies due process Eighth Amendment concerns enunciated By requiring jury statutory Court. that the find at least one aggravating adequately circumstance, North Carolina has death-eligible narrowed the class of murderers. See Zant v. (1983). Stephens, 462 U. S. 877-879 On the other hand, by permitting find, consider evidence of, and circumstance offered the defendant, North Carolina has ensured that the will “be able consider give imposing effect to that evidence in sentence.” (1989). Penry Lynaugh, By requiring S. (be- aggravating both circumstances to be found doubt) yond a reasonable circumstances to be unanimously (by only preponderance found of the evi- dence), “reduc[ed] [the North Carolina has the likelihoodthat *22 jury] impose fairly capri- will a sentence that can be called arbitrary.” Gregg Georgia, cious or v. 428 U. S. 194- (1976) JJ.). (opinion Stewart, Powell, and Stevens, Finally, by requiring jury beyond to find aggravating a reasonable doubt not that the circum- outweigh mitigating stances circumstances, but also that they sufficiently light are in substantial cir- justify penalty, cumstances to the death North Carolina has provided assurance that death will even an extra measure of mechanically imposed. lightly not be
II
discussing
petitioner
raises,
Before
constitutional issue
briefly
I wish to address
the Court’s assertion that we have
already
very
past—
addressed and resolved this
issue in the
clearly governs
[in Mills]
that “our decision
this case.”
Although
language
Mary
Ante,
in
at 439.
there is
Mills v.
(1988), suggesting
unanimity
land,
that a
Maryland Appeals dispute Court of “did not that if the stat- petitioner suggested [verdict] ute and form were read as require mitigating unanimously], [i. e., to to be factors found improperly prevented giving would be due con- (em- supra, Mills, sideration to evidence.” at 372 phasis original). The State itself made the same conces- (“Under interpretation sion its brief before this Court. proffered by an Petitioner, of the statute unconstitutional unanimity particular mitigat- in that restriction existed ing on a required weighed was circumstance before could be determining appropriate Respond- sentence.” Brief for 19.)1 Maryland, p. ent in Mills v. T. 87-5367, O. No. contends that the State “defend[ed] Court of 1 Justice Blackmun that, Appeals’ judgment ground on the alternative even if a reasonable jury might requiring finding have read the instructions as a unanimous be any considered, fore factor could be would not Ante, Eddings.” contravene the Lockett dictates of at 448. Presum ably gone have defense would somewhat as follows: though Appeals authoritatively
“Even the Court of has determined that Maryland requiring law entitled this defendant instruction life single mitigation; though, sentence found sufficient and even contends, petitioner mistakenly required unanimity the instruction here on *23 controversy question regarding Accordingly, no by today have decided was even been Mills holds Court very simple reason that no statute before Court—for because, you uphold the death sentence even mitigation; must nevertheless unanimity, require requiring it would Maryland not fact though law did not be unconstitutional.” Maryland’s Attorney would be rash facially General implausible
It is
implausible that we would
argument
even more
enough to
make
—and
merits,
unanimity
require-
rejecting it
because
entertain it on'its
obviously,
would,
Quite
the constitutional
too,
unconstitutional.
ment
be
constitutionally
Maryland
law could
re-
Whether
issue is irrelevant.
authoritatively
Appeals
that it
determined
quire unanimity, the Court
so;
upon an erroneous instruction to
do
a death sentence based
did not
Blackmun is correct that
be set aside.
that effect would have to
Justice
case,
instructions,
do not violate the
“[ajmbiguous
even in a
ante,
they
ambiguous,”
at
but
simply because
are
Eighth Amendment
they
misstate the law to the de-
they do
the Due Process Clause
violate
it not
to that violation that the law as
essential
fendant’s detriment —and
Thus,
to take
most extreme ex-
law.
misstated
an unconstitutional
Supreme
law,
authoritatively interpreted
the State’s
ample, if
state
offense,
Court,
a certain
the Due
penalty
the death
for
does not authorize
permit
impose
it even if the
state trial court
Process Clause would not
with
Amendment.
Hicks v.
comported
Eighth
See
instructions
(1980)(where
Oklahoma,
requires jury sentencing,
law
state
as (as unanimously, and the State understood find failed to finding) necessary consequence va- such be the would proceedings. judgment for further and remanded cated dissenting thought the Id., four Justices at 381-384. would have misunderstood risk reasonable negligible, thus have affirmed. was would instructions dissenting). Id., J., C. at 391-393 (Rehnquist, “holding Mills that the characterization The Court’s unanimity], require [interpreted were un- instructions, “striking] ante, n. down constitutional,” *25 pure Maryland ante, No 439, at is revisionism. scheme,” authoritatively except Maryland the one de- existed scheme Appeals, Mullaney by Maryland see the Court of scribed (1975) require Wilbur, did not 684, 421 U. 690-691 S. —which mitigation finding the receive defendant to unanimous sug- language be Mills contains sure, To life sentence. unanimity requirement gesting would contravene that Eddings. Mills, S., at See U. 374-375. Lockett and suggestions plainly these were But, circumstances, the under by separate Any doubt is resolved dicta. White’s Justice entirety: concurrence, which states its jurors would in this case is how reasonable “The issue applied That their instructions. is understood have per- opinion addresses, I and am the issue the Court’s reaches the correct solution. the Court suaded join opinion.” Id., I at 389-390.3 Hence, the Court’s meaning majority opinion of a is Blackmun states that “the 3 Justice itself; opinion gloss the that an individual Justice to be within the found 448, Ante, n. That is place upon not at 3. it is authoritative.” chooses to majority. for the certainly the individual Justice is needed true where is, majority opinion question: opinion not a begs But it the where he What he writes is not except the extent that it accords with his views. to sure, separate “gloss,” common denominator. To but least holds, binding majority opinion the other add what the writing cannot said; assuredly what it can narrow they have not but four to what Justices holds, by interpretation limited opinion explaining the more majority provided the fifth vote to remand Because Justice White resolving regard an he impossible issue Mills Mills, it is the Court. have been before did not believe Ill pre- in Mills is both conceded constitutional issue present case. North Carolina’s in the and contested sented provides unambiguously sentencing that miti- statute unanimously. by gating be found must circumstances constitutionally defective be- finds this scheme The Court giving prevents “from effect to evi- individual cause they less than death.” a sentence believe calls for dence Lockett, (citing Eddings, at 455 U. Ante, at omitted). 604) (internal quotations This is so S., at ultimately dispositive juror’s each answers because mitigat- those account of can take Three and Four Issues under Issue ing found circumstances any juror the defendant has Thus, who concludes Two. precluded proved circumstances additional giving disagreement colleagues’ that conclusion ef- his prospect refers to times The Court several fect. reaching prevent juror” 11 from the other will “‘holdout’ one they ante, wish, the reader should not but decision *26 appealed principle to is not ma- The constitutional misled: According opposite. just the jority Court, to rule but prevent juror system can one in which North Carolina’s mitigating giving circumstance is a effect to from others requires, context because Constitution invalid majority. If the author of the necessary by member of adopted a says with his own under- inconsistent “glossator” what the opinion finds decline, opin- certainly at the outset of the may standing opinion, he of in- “glossator” nonetheless if the ion, joining; that Justice as to show explicitly can disclaim join, suppose the author upon purporting to I sists that four it asserted Justices But I have never heard company. his by binding a fifth their in- majority to a power to fabricate have Court separately explain though he writes they say, even of what terpretation understanding. more narrow his own system statute, in which one a
of the North Carolina mitigating denying cir- a prevent from can the others effect “ provides juror” attrac- scenario The ‘holdout’ cumstance. upon principle alleged atmosphere, constitutional but the tive permit- juror [must] be “each rests which the decision mitigating give evidence when ted to consider effect question deciding for sentence to vote ultimate whether added), “may (emphasis not be ante, at death,” (em- by jurors’ ante, at 443 failure,” more foreclosed phasis one or added), mitigating existed, or facts to find that those mitigating. existing scheme, Such a facts were those (at jury’s requires the the statute least where under which unanimous) single juror’s of death to be recommendation mitigation finding regarding control, is must the existence of by principle “the established demanded asserted to be may a sentencer Ohio, Lockett v. 438 U. S. giving precluded evi- to all from effect not be Ante, at 438. dence.” respect, principle does in Lockett” established
With “the remotely support Lockett, the Court that conclusion. imposed lim- a statute that sentence under vacated death sentencing judge’s factors consideration ited the statutory plurality A of the Court circumstances. three Eighth Amendments re- “the and Fourteenth reasoned that quire all kind of sentencer, in but the rarest that the considering, precluded fac- case, not be any aspect character or record and of a defendant’s tor, prof- that the defendant the offense the circumstances a sentence less than death.” fers as a basis for J.) (emphasis Burger, (opinion omitted; footnotes C. omitted). Eddings, upon Similarly, relied ih also sentencing Court, a death sentence because we vacated proffered by judge the defend- to consider evidence refused upbringing. unhappy “Just as the We reasoned: ant of his preclude *27 from consid- statute the sentencer State not may ering any hiitigating the sentencer refuse factor, neither any mitigating law, a matter relevant evi consider, (emphasis original). Ac S., 455 U. at 113-114 dence.” (failure Penry Lynaugh, at 328 to instruct cord, mitigating give and effect to that it could consider Texas statutory scope special beyond issues of three evidence Eddings), Dug Lockett and Hitchcock v. with inconsistent (1987)(trial judge’s ger, law belief Florida 481 U. S. nonstatutory mitigating prohibited circum consideration of corresponding instruction to the contravened stances and (trial (1986) Lockett), Skipper Carolina, 476 U. S. South permit jury judge’s consider evidence of defend failure to prison good inconsistent with Lockett and ant’s behavior Eddings). may principle these cases is that a State established considering giving preclude the sentencer from effect
not proffered any mitigating circumstance relevant to evidence (“The Penry, supra, at 319 sentencer the defendant. See give [mitigating] effect to must ... be able to consider sentence”) added); (emphasis imposing Hitch- evidence (“[T]he may supra, cock, at 394 sentencer not refuse to con- considering any mitigat- precluded from relevant sider or be (internal evidence”) quotations ing omitted; omitted; citations added); Skipper, supra, (mitigating emphasis at 5 “evidence consideration”) from the not be excluded sentencer’s (“[T]he added); Eddings, supra, (emphasis sentencer [may not] . . evi- to consider . relevant refuse dence”) added); supra, (“Eighth (emphasis Lockett, at 604 require that the sentencer . . . Amendments and Fourteenth evidence) (em- precluded considering” from not omitted). phasis The sentencer in this case added; footnote precluded jury, which has not been was the North Carolina considering giving effect to all circumstances. upon complains petitioner a limitation of here
What give to, effect but rather a was allowed to what sentencer upon to do so— the manner which was allowed limitation *28 today, unanimously. As that is the Court observes viz., simple logical and differ distinction. “There is a crucial govern jury must that tuhat factors the be between rules ence permitted sentencing making in decision and to consider may guide jury govern in that how the State consid rules reaching weighing ering in a decision.” and those factors added). (emphasis holding post, In Parks, at 490 Saffle invalidating antisympathy an instruction would be that a rule Teague Lane, we rule U. S. 288 a new under directly, Eddings speak and “do not concluded that Lockett jury] mitigating [the consider the evi all, to” “how must opposed evidence the dence,” as to “what making sentencing permitted its deci must be to consider Lynaugh, post, Accord, at 490. Franklin v. Saffle, sion.” (1988) (“[W]e opinion) (plurality S. have suggested evi never that consideration unfocused”). short, Lockett dence must be undirected Eddings simply question quite to irrelevant be and are pressed describing into us, and cannot be service fore [by establishing “a sentencer which reader them jury] invited to understand an individual member of precluded giving effect all evi added). (emphasis Ante, at 438 dence.” IV supports Nothing prior then, the rule cases, our pur- not even announced; has since the Court does Court rely practice, port upon constitutional text or traditional support nothing are, result. There remains to more- prior over, some affirmative indications cases what done is Those indications North Carolina has constitutional. compelling perverse that the are not reason less —for likely support claim, a constitutional the less exists for seriously before, claim taken that the has been raised or previously likely rejected has hence less this Court petitioner of his it. If should seek reversal sentence because shirts, it would be impossible were wearing green two that there is except nothing the claim against say anything tradition, text, nor jurispru- it—neither be said here, made already I have That is the point dence.
alone suffices. *29 I however, caution, that it is entirely superfluous,
With the
that ap
our jurisprudence
of
aspects
mention several
with, not
result.
To begin
the Court’s
to contradict
pear
a
re
invalidated
jury-unanimity
we never before
have
such a
schemes imposing
we have approved
but
quirement,
to the criminal
importance
in contexts of great
requirement
to
the de
establishing
as a condition
example,
defendant —for
case,
Martin v.
murder
see
a capital
of self-defense
fense
§§2903.01,
Ohio,
(1987);
Ann.
Rev. Code
thesis just requirement a view—invalidates effect” to his own unanimity a fac to benefit from for the defendant any more than tor, number of but a Oregon, with Leland it is in tension one. Thus also (1952), require upheld, case, in a which U. S. 790 proved (beyond insanity reason ment that the defense doubt) at least 10 of the 12-member to the satisfaction of able respect proof offense, jury. of the substantive with Even approved opposed defense, have ver affirmative we to an Apodaca jury. by v. Ore than a unanimous See dicts less (1972) providing (upholding gon, statute state vote). sure, have, We to be found 10-to-2 for conviction six-person jury all than that a criminal verdict less not, however, inherent vice because of unconstitutional— in nonunanimity, verdict, 5-to-l no less than but because a *30 Georgia, verdict, Ballew v. 435 U. 223 5-to-0 see S. preservation “presents of the . . to of the substance a . threat Louisiana, 130, jury guarantee.” 441 S. trial Burch U. (1979). 138 (Patter- briefly of the above cases discusses one Court son), recognize a we that if a “chooses to which said State criminality mitigates degree punishment, of factor that itself that the fact has been estab- . . . assure State certainty.” It at 209. lished with reasonable presumably distinguish distinguishes case, would and requires cited, I have as follows: “The Constitution the rest evidence to allow consideration of States Any must barrier to such consideration therefore cases. Ante, surely But also re- at 442. the Constitution fall.” bearing quires all evidence States to allow consideration of guilty. a an must verdict of unanimously found affirmative defense return Blackmun believes Justice jury proportion what One wonders (if 12) in States where necessary find an affirmative defense not all those specify majority. explicitly the law does and of all offense consideration criminal substantive upon If, defenses. those evidence affirmative bearing upon contexts, as such consider- a “barrier” to it is not regarded evalua- single before any juror’s ation to unanimity require effect” to the defendant’s tion of can be “given the evidence awhy I not understand comparable require- do advantage, to consideration of mitigation. ment “barrier” constitutes context, certainty” “reasonable assuring in the latter why, Or legitimate objective. is no longer is the theory with the Court’s incompatible prin-
Likewise
held
that we have
previously
of
discretion
guided
ciple
States, we
validity
capital sentencing.
essential
to the
the sentencer’s discretion
‘clear
said, “must channel
have
and detailed
provide ‘specific
standards’
objective
and
the process
that ‘make
reviewable
rationally
guidance’
Georgia,
Godfrey
a sentence of death.’”
for imposing
(footnotes omitted).
(1980)
opinion)
S.
(plurality
U.
in a
each individ-
system
requires
There
little guidance
idiosyn-
ultimate decision his own
bring
ual
what
are mitigating, untempered by
cratic
facts
notion
today,
Until
agreement.
deliberation
discipline
group
scheme was
I
that North Carolina’s
thought
would have
discretion. The
model
guided
—
like a
verdict
operates
special
four
issues
specific
determine
and ratio-
reliability
recognized
enhancing
a device long
Sunderland, Ver-
See, e. g.,
determinations.
nality
(1920).
L.
29 Yale
J.
dicts, General
Special,
court to examine the
reviewing
Moreover, by enabling
it facilitates appellate
verdict
underlying
specific findings
*31
“an
additional
review,
we have described as
important
which
v. Geor-
caprice.” Gregg
arbitrariness
safeguard against
Stewart, Powell, and Ste-
at 198
S.,
(opinion
U.
gia,
JJ.).
is
authority
required
“Where the
sentencing
vens,
decision,
its
upon
reaching
the factors
relied
specify
review is available
of meaningful appellate
further safeguard
imposed capriciously
are not
to ensure that death sentences
Id.,
Zant v. Ste-
Accord,
195.
in a
manner.”
at
freakish
Florida,
v.
428 U. S.
890;
at
phens,
Proffitt
JJ.).
(1976)
Powell, Stewart,
(opinion
Stevens,
scheme.
eminently
down this
reasonable
The Court strikes
evaluated
conveniently
it substitutes
of what
quality
will behave
juries
future
Carolina
how
North
by considering
in which all
doomsday hypothetical,
own
under
Court’s
cir
one mitigating
the defendant has proved
believe
Ante, at
cumstance,
each believes a different one.
but
not a collection of individ
course,
A
439-440.
jury,
views,
their
who are
about
separately
independent
uals
asked
collectively.
to deliberate and decide
body
but
designed
Florida,
(1970) (Sixth
See Williams
399 U. S.
jury
enough
promote group
Amendment requires
“large
(1978) (five-
Ballew
juries *32 peti prohibition asserted constitutional sum, supported by in Mills and is not not decided was tioner sup nothing Eddings. is adduced to else Since Lockett believing It port is, that it exists. it, there is no basis principles governing contrary moreover, to the constitutional contrary principle to the contexts, trial other guided incursion into the that launched our modern discretion sentencing, capital de and destructive of sound field tradition, in ad text and When we abandon liberation. holdings, knowing prior to their not restrict cases dition do impossible. observing becomes State the law of the land expound uphold we to rush to the Constitution officialssworn designed precepts, newly comply to with one of our by complying they have violated another one told Compare opposite points Furman v. Geor direction. (1972) (invalidating discretionary gia, death 408 U. S. penalty), Carolina, 428 with Woodson v. North (1976) mandatory penalty light (invalidating death enacted Furman). today’s decision, and from the I dissent capital sentencing jurisprudence unpredictable it represents. the ultimate is- upon . unanimous verdicts on “are . . called to render
ries case,” jury reach general requirement given with “no sues of which underlie the verdict.” preliminary factual issues agreement on pull their legislators that causes state Ibid. This argument is the sort of it is this But practice. the usual general A verdict is of course hair. capital in the sentenc- special verdicts pushed that has States Court authority . . . ing requiring sentencing “the We have intimated that field. reaching be neces- upon its decision” specify the factors relied ensure, [,] through “meaningful appellate review that death sen- sary Gregg in a freakish manner.” imposed capriciously are not tences Stewart, Powell, (1976) and Ste- (opinion Georgia, 428 U. S. JJ.). vens, encouraged, Disparaging practice we have least coerced, ad- charge that we have been gives new' substance to indeed sentencing jurisprudence. ministering a “bait and switch”